NO. 07-11-0434-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 7, 2011
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IN THE INTEREST OF C.J.G., a Child
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FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 5552-C; HONORABLE ANA ESTEVEZ, JUDGE
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MEMORANDUM OPINION
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Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Eric Gamez, appellant, perfected his appeal from a judgment entered in the above
referenced matter. This court has received the clerk’s record which contains an order
granting appellant’s motion for new trial, raising a question concerning our jurisdiction
over this appeal. We are obligated to determine, sua sponte, our jurisdiction over an
appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990).
Therefore, we sent a letter to appellant giving him until December 1, 2011, to explain
why we have jurisdiction over the appeal. To date, no response has been received.
Perfection of appeal does not prevent the grant of a new trial within the time
permitted by Rule of Civil Procedure 329b. TEX. R. CIV. P. 329b(d), (e). Rule 329b(c)
provides a motion for new trial is overruled by operation of law if Anot determined by
written order signed within seventy-five days after the judgment was signed.@ Rule
329b(e) extends a trial court=s plenary power to grant a new trial thirty days after any
timely filed motion for new trial is overruled. The limited record before us indicates the
challenged judgment was signed October 4, 2011. The new trial motion was timely
filed, and the order granting same was signed on October 31, 2011.
The effect of the trial court=s order is to vacate the original judgment, In re
Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex. 2005),
and put the case in the position as if there had been no trial. Jordan v. Bustamante,
158 S.W.3d 29, 36 (Tex.App.–Houston [14th Dist.] 2005, pet. denied). Because a final
judgment is a prerequisite to our appellate jurisdiction, Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001), we dismiss the appeal for want of jurisdiction. TEX. R.
APP. P. 42.3(a).
Brian Quinn
Chief Justice
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